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Matter of Augenstein3/24/1994
id provide this information by the end of the hearing.
It is significant that the same mitigation finding of "personal or emotional problems" was made by a completely different hearing committee in the separate disciplinary proceeding now deemed by the court to be a prior infraction for purposes of aggravation. That separate matter arose out of conduct which occurred during the same general time frame as respondent's actions leading to the charges in this case. Remarkably, the disciplinary commission there accepted the above finding in mitigation, specifically noting respondent's testimony that "his negligence and failure to respond to the State Bar were both the result of his depression." Yet, proof in that matter was not significantly different from what was presented here.
Other inconsistencies appear as well. For example, here the commission placed little or no value on respondent's explanation that he was not unwilling to make restitution, but only financially unable to do so. In the other case, it seemed to give favorable treatment to such testimony. In neither commission report is there reference to the other. In fact, both reports specifically recite in mitigation that respondent has had no other disciplinary infractions. Finally, in the "prior" case, the commission recommended only that respondent be censured and placed on probation. It inexplicably did not recommend suspension despite the bar's urgings and the fact that its members must have known of this proceeding.
I also have minor disagreement with the way certain facts are portrayed in the majority opinion. For example, the hearing committee's early desire to disbar respondent was obviously due to his failure to have made an appearance, or to have done anything at all to defend himself (perhaps an additional indication of his depressed mental state). Because of proportionality concerns, however, the committee voted only to suspend him for six months and one day. Later, after respondent requested an aggravation/mitigation hearing and gave his testimony, the committee recommended a 120 day suspension followed by a two year probation. Clearly, the people in this process who had an opportunity to view the witnesses and hear the testimony were moved to retreat substantially from their original positions.
The primary purpose of discipline is to protect the public, not to punish the lawyer. Despite this frequent pronouncement, I perceive an increasingly punitive trend in many of these cases. While I certainly do not condone respondent's conduct, I cannot ignore the hearing committee's finding that his emotional difficulties, resulting from a series of personal crises, contributed significantly to his actions. To me, this is adequately supported by the record. I could therefore adopt the committee's recommendation of a 120 day suspension, accompanied by strict probation and specific conditions for reinstatement designed to ensure respondent's stability and competence before permitting his return to the practice of law. Such safeguards should be sufficient to protect the public.
I would also not have difficulty if the suspension were for six months and one day, as recommended by one member of that committee. I cannot, however, subscribe to the two year suspension imposed here, because it fails to take into account important mitigating evidence specifically found by not just one, but two distinct hearing committees. I therefore respectfully Dissent.
Thomas A. Zlaket, Justice
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